Carter v. Buesgen

Dist. Ct. erred in denying without prejudice defendant’s section 2254 petition that challenged his nine-year sentence, where focus of defendant’s petition was fact that Wisconsin court’s four-year and continuing delay in resolving defendant’s post-conviction petition that challenged his sentence, under circumstances where defendant had only six months left on six-year sentence to which defendant had agreed to in plea agreement, has essentially prevented him from addressing his rights under U.S. Constitution. Ct. of Appeals found that although instant dismissal was without prejudice, it still had jurisdiction to consider instant appeal, where record showed that Dist. Ct. entered final order, where it would be futile for defendant to go back to state court and wait for state court to act on his pending petition for post-conviction relief. Moreover, rather than directing defendant to go back to state court to obtain relief, Dist. Ct. should have acted on merits of defendant’s section 2254 petition that raised same issues regarding his sentence that were contained in his state-court petition for post-conviction relief, where instant four-year delay established that state court remedies in Wisconsin are ineffective to protect defendant’s rights.